Alito Asylum Rulings Raise Questions

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Analysts say that during 15 years as a federal appeals judge, Supreme Court nominee Samuel Alito has mostly ruled against immigrants seeking asylum when the government contested their claims. Detractors worry about his influence if appointed to the high court.

ROBERT SIEGEL, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.

Congress is preparing to take up new, sweeping immigration proposals in the new year, and the Supreme Court, of course, hears various immigration issues every year. It's with those things in mind that NPR's Jennifer Ludden looks at the rulings of federal appeals Judge and Supreme Court nominee Samuel Alito.

JENNIFER LUDDEN reporting:

In 2003, Saidou Dia was seeking asylum in the US after fleeing his native Guinea. An immigration judge had denied his request, saying she didn't believe Dia and his wife had been persecuted. But the 3rd Circuit Court of Appeals, where Alito sat, said that judge didn't provide evidence that the two were lying, so they sent the case back for review.

Mr. DAVID LEOPOLD (American Immigration Lawyers Association): This was a case where there was evidence that the guy's wife was raped, that his house was burnt down, that he had specifically refused to join the military because the military had killed his father.

LUDDEN: David Leopold of the American Immigration Lawyers Association thinks that was the right decision, but Alito dissented in the Dia case. In his written dissent, he said, `Even without evidence per se, the Appeals Court should trust the immigration judge's gut instinct,' what he called `background knowledge. What more the court wants is a puzzle,' Alito wrote. `Does the court expect the judge to cite empirical evidence about how couples generally behave when the wife has just been beaten and raped by soldiers?' David Leopold says the other judges rebuked Alito's position.

Mr. LEOPOLD: The majority opinion drops a footnote in which they specifically indicate that Judge Alito in his dissent is just simply ignoring the precedent of the 3rd Circuit and gutting the standard that the majority was applying in that particular immigration case. So it really raises the question about him following precedent.

LUDDEN: Asylum cases often come down to whether judges find someone's story credible, and so some immigrant advocates worry that with his record of deferring to the government, Judge Alito won't give sufficient weight to immigrants' claims. But Jan Ting of Temple University sees it differently.

Professor JAN TING (Temple University): Who makes the laws in the United States? That's, I think, the gut question here. Some people want laws made by judges. And I think the president and Judge Alito's supporters feel that laws should be made through the democratic process, by elected members of Congress. And I think Judge Alito, in his decision-making, reflects that view.

LUDDEN: Because Judge Alito has often ruled against the claims of non-citizens, David Leopold was surprised to come across two cases where Alito ruled for asylum-seekers. In both, women argued they would face forced abortion back in China. Leopold says this raises eyebrows for him. Does abortion trigger a different legal standard? But Jan Ting points out that in 1996, Congress amended asylum law specifically to include resistance to birth-control practices.

Prof. TING: This is now the law of the land, so Judge Alito or his supporters have a strong case to make here that he is simply deferring to Congress.

LUDDEN: One of Samuel Alito's decisions that liberals almost embrace is that of an Iranian woman seeking asylum. In his opinion, Alito found that, in theory, one could claim persecution based on being a politically active feminist. It's one of the first cases to look at asylum and gender. But in this specific instance, Alito found the woman had not proved her case. Jennifer Ludden, NPR News, Washington.

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